2022 Marcom Trends - Magazine - Page 37
influencer-produced content for up to one year. In exchange,
the signatory advertiser or agency must make the P&H
contribution to the union on the influencer’s behalf, based
upon the influencer’s union covered services. As long as the
contract clearly states the influencer’s gross compensation
amount as well as the total amount to be contributed to the
union’s P&H funds, the parties can freely negotiate as to
whether the P&H contribution should be deducted from, or
paid in addition to, the influencer’s fee.
SAG-AFTRA’s Influencer Agreement
and Waiver to the Commercials Contract
Howard R. Weingrad, Partner, firstname.lastname@example.org
Samantha G. Rothaus, Associate, email@example.com
Jordan M. Thompson, Associate, firstname.lastname@example.org
In early 2021, two new developments arose in the world of influencer marketing and talent
unions. First, in February 2021, the Screen Actors Guild-American Federation of Television
and Radio Artists (SAG-AFTRA) announced that it would begin welcoming online influencers
into the union under its “Influencer Agreement.” Shortly thereafter, SAG-AFTRA and the
Joint Policy Committee representing advertisers and agencies (JPC) announced the
introduction of a new “Influencer Waiver” to the SAG-AFTRA Commercials Contract.
Below are some common questions and answers regarding this
development and what it means for advertisers and their agencies.
What is the SAG-AFTRA Influencer Agreement?
The SAG-AFTRA Influencer Agreement (Influencer
Agreement) is a contract intended to enable social media
influencers who self-produce branded content for advertisers
and meet certain additional criteria to be treated as members
of the union in connection with their qualifying services.
Influencers must incorporate as an LLC or corporation
in order to sign on to the Influencer Agreement.
Influencers must contract directly with an advertiser
or an advertiser’s agency. They cannot be procured or
contracted through an influencer procurement network
or other third-party intermediary.
Influencers may not perform hazardous stunts,
gratuitous nudity and sexual content under the
There are no follower-count requirements for an
influencer to qualify to produce sponsored content
covered by the Influencer Agreement.
What are the requirements for influencers to produce
content under the SAG-AFTRA Influencer Agreement?
In order for an influencer to be eligible to sign on to and
produce qualifying content under the Influencer Agreement,
they must meet the following criteria:
Who is considered to be the influencer’s “employer”
(and why does it matter)?
Influencers that want to perform union-covered services
under the Influencer Agreement must do so through a
business entity that is deemed to be their “employer.”
Influencers working under the Influencer Agreement must
first incorporate themselves or establish an LLC. The entity
they create then signs on to the Influencer Agreement and
is considered the influencer’s “employer” for purposes of
their union-covered services. The influencer’s entity as the
SAG-AFTRA signatory is also responsible for paying the
influencer’s pension and health (P&H) contributions to the
union from the influencer’s compensation earned from their
Influencers must self-produce original on-camera
video or voiceover content that features an advertiser’s
product or service. This means they must be the only
performer appearing in the content and they must also
independently write, film and produce all elements of
the content. The content cannot be written or produced
by a third party, such as a production company or an
Distribution of the content must be limited to the
advertiser’s and the influencer’s own social media
channels (including YouTube, Facebook, Instagram,
TikTok, Twitter, etc.).
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How can my agency/brand hire an influencer who has
joined SAG-AFTRA under the Influencer Agreement?
Advertisers and agencies that are not signatories to the SAGAFTRA Commercials Contract may freely hire influencers
who have become union members under the Influencer
Agreement and will not be subject to any union obligations.
In such a case, the influencer (through his or her entity)
would be solely responsible for complying with all union
requirements, including calculating and contributing P&H
payments to the union. The advertiser or agency will not
need to modify their usual course of action in order to hire
this influencer – and in fact may not even know whether the
influencers are providing services under the union or not.
If the advertiser or agency wishes to expand its use of
the influencer content outside of social media (such as to
television) or beyond a one-year period, then notice to the
influencer and further negotiation is required. Any expanded
use of the influencer’s content in other media or for a longer
duration will trigger the need to pay the influencer additional
usage fees in accordance with the Commercials Contract.
If my agency/brand is a signatory to the Commercials
Contract, does that mean we can only hire influencers
who become SAG-AFTRA members?
A signatory advertiser or agency is free to hire any influencer,
whether or not they are a member of the union. As long as
the individual is providing influencer-produced sponsored
content, then the advertiser or agency can engage the
individual utilizing the Influencer Waiver regardless of the
individual’s union membership status. By utilizing the Waiver
and giving the influencers benefits similar to those they
would receive under the Influencer Agreement, signatory
advertisers and agencies can avoid potential challenges
from the union if the influencer-produced content might be
considered a commercial.
Will it become more expensive or complicated for my
agency/brand to hire influencers now?
Because influencers who create qualifying content as SAGAFTRA members are now obligated to make contributions
to the union’s P&H fund, they may be incentivized to charge
higher rates. However, these developments are unlikely to
have a significant impact on the usual process for engaging
For advertisers and agencies that are signatories to the
SAG-AFTRA Commercials Contract, influencers cannot
be engaged under the Influencer Agreement. Instead,
these signatories can utilize the Influencer Waiver to the
Commercials Contract, discussed in more detail below.
What is the Influencer Waiver to the Commercials
Advertisers and agencies that are signatories to the
SAG-AFTRA Commercials Contract are required to abide
by certain minimum requirements and standards when
engaging performers to appear in commercials. With the rise
in influencer-produced sponsored content in recent years, it
has not always been clear whether certain influencer content
could be deemed a commercial. The Influencer Waiver to the
Commercials Contract (Waiver) offers a solution to this murky
question by providing a safe harbor to signatory agencies
and advertisers who seek to utilize influencer-produced
sponsored content, while giving influencers treatment similar
to what they would receive if they produced qualifying
content under the aforementioned Influencer Agreement.
By utilizing the Waiver to engage influencers to self-produce
sponsored content, signatory advertisers and agencies
may freely negotiate the fee to be paid to the influencer,
with no union-required minimum rates, and may utilize the
Agencies and advertisers who are not signatories to the
Commercials Contract are unlikely to see any changes or
have any increased obligations due to the influencers they
hire. Agencies and advertisers who are signatories will need
to engage in some additional negotiation regarding how the
influencer’s P&H contribution will be paid, but otherwise will
not be required to undertake any increased obligations.
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